INTRODUCTION
Defamation means to hurt someone’s reputation which every person has an inborn right to enjoy and to make sure that this right is not violated. If therefore, a person makes a statement either orally or in writing and hurts another person’s reputation, he will be considered to have committed a tort and liable for it in court.
RELEVANT LAWS
Defamation Ordinance, 2002 deals with defamation.
CROSS-REFERENCE
- Section 499 to 502 of PPC, 1860
- Schedule II of Cr. PC 1898
MEANING OF DEFAMATION
According to Black’s Law Dictionary
A false written or oral statement that damages another reputation.
DEFINITION OF DEFAMATION
According to Underhill
Defamation is the publication of a statement that tends to lower a person in the estimation of rigid thinking members of society generally; or which tends to make them shun or avoid that person.
KINDS OF DEFAMATION
According to English law, defamation is of two kinds.
- Libel
- Slander
ESSENTIALS OF DEFAMATION
Following are the conditions required to constitute an action for defamation, whether for libel or slander.
1. WRITTEN STATEMENT
The written statement means anything written by hand. It also includes printed material and broadcast through electronic media.
2. STATEMENT MUST BE DEFAMATORY
A statement or the matter is deemed defamatory, that
- Exposes the plaintiff to hatred, contempt, ridicule, or obliquy
- Tends to injure him in his trade or profession
- It may cause him to be shunned or avoided by society
3. STATEMENT MUST REFER TO THE PLAINTIFF
The statement alleged to be defamatory or the matter complained of must refer to the plaintiff and in this regard, the question is not who was meant but rather who was hit.
Example: It would be no libel if it were written that all doctors are killers. But writing that Dr. X is a killer would relate to a particular person and would be actionable as libel.
4. STATEMENT MUST BE PUBLISHED
Publication means making known the matter to some person other than the plaintiff It is a publication, and not mere speaking or writing of defamatory words, which is the gist of the wrong of defamation. Thus, no action can be maintained for libel or slander unless it is published.
5. STATEMENT MUST BE FALSE
It is necessary that the defamatory statement must be false as no action lies against the defamatory statement which is true.
6. NO LAWFUL EXCUSE
The defamatory statement; which is published, should not have any lawful excuse behind it. If any force of law or excuse was behind the material that will not be a tort.
DEFENCES AVAILABLE IN AN ACTION FOR DEFAMATION
Some of the defenses that are available to the plaintiff in any action of defamation are discussed below.
1. JUSTIFICATION BY TRUTH
Truth is a complete defense to an action for libel or slander (i.e. defamation) that the words complained of are true in substance and fact.
The defense of justification, which is a good defense in a civil action against libel or slander, is that the words complained of were true in substance and fact.
2. FAIR AND BONAFIDE COMMENT
A fair and bonafide comment on matters of public interest is no libel, however severe in its terms unless it is written intemperately and maliciously.
BONAFIDE COMMENT
According to Wharton’s law lexicon
Bonafide means “with good faith, implying the absence of fraud or unfair dealing or acting, whether it consists in simulation or dissimulation.”
FAIR COMMENT
According to Halsloury’s law of England
The defense of fair comment needs that the material fact or facts on which comment or criticism is based should be truly stated. It must be a matter of public interest. To avail this defense, the words published must be
-
- Fairy relevant to some matter of public interest
- The expression of opinion and not the allegation of a fact
- They must not be published maliciously
- They must not exceed the limits of fair comment
PUBLIC INTEREST
A matter of public or general interest does not mean that what is interesting is a gratifying curiosity or a love of information or amusement, but that in which a class of the community has a pecuniary interest or some interest by which their legal rights or liabilities are affected.
Following are some instances of public interest.
- Affairs of state
- Public acts of ministers of state
- Public acts of officers of state
- Public institutions & local authorities
- The administration of justice
- Theaters, cinemas, concerts, and other public entertainments, etc.
3. PRIVILEGE
A right or immunity granted as a particular benefit, advantage, or favor is called a Privilege.
NOTE: When a person stands in such a relation to the facts of the case that he is justified in saying or writing that would be slanderous or libelous in anyone else; he is said to have a privilege and the occasion on which such privilege is exercised is known as a privileged occasion.
KINDS OF PRIVILEGED OCCASION:
Privileged occasions are of the following two kinds.
A) Absolute Privilege
B) Qualified Privilege
A) ABSOLUTE PRIVILEGE
A statement is absolutely privileged when no action lies for it even though it is false, defamatory, and made with express malice. Absolute privilege arises when on grounds of public policy, a man should speak his mind freely and without fear of consequences.
Note: The existence of malice is entirely irrelevant in this case.
INSTANCES OF ABSOLUTE PRIVILEGE
- Judicial proceedings
- Military and Naval proceedings
- Parliamentary proceedings
- State proceedings
- Statements between solicitor or Barrister & Client
- Statements between husband and wife.
B) QUALIFIED PRIVILEGE
A statement is said to have a qualified privilege when no action lies for it even though it is false and defamatory unless the plaintiff proves express malice.
INSTANCES OF QUALIFIED PRIVILEGE
- A statement made in the performance of a duty
- Statements made in the protection of common interest
- Fair and accurate reports
- Reports of judicial proceedings
- Extracts or abstracts from reports, etc. of Parliamentary proceedings
- Reports of quasi-judicial proceedings
4. APOLOGY
A newspaper may offer this defense if it can show that the libel was published without malice. In addition to publishing an apology, a payment of money must be paid to the court before the commencement of the case.
The Defamation Act, of 1996 provides that a publisher of a defamatory statement may make an offer in writing, to make a declaration by publishing a denial and an apology.
In other words, the injured party must be paid compensation. If the offer were accepted, the injured party may not continue the action. The act also reduces the time limit to one year when an action may be started.
REMEDIES AVAILABLE TO THE PLAINTIFF
As to the remedies available to the person defamed he may either proceed by filing a criminal complaint or may fill a civil suit for damages. An injunction under sections 38 & 39 of the Specific Relief Act, 1963 may be obtained to restrain the defamatory publication.
1. DAMAGES
The law grants two kinds of remedies in respect of defamation
- A civil suit for damages
- A criminal prosecution
The mere fact that there had been a criminal prosecution and a conviction before filing a civil suit is not a sufficient reason for reducing the number of damages. A person availing one remedy after another is entitled to get as much compensation as he would otherwise get.
2. INJUNCTION
To obtain an injunction the plaintiff has to prove that the allegation was false and without justification. However, unless there is the likelihood of immediate injury to the plaintiff’s person, property, or trade, the court hardly acts to grant an injunction.
CONCLUSION
Defamation is a false, published statement that is made orally, in writing, or by gestures, which attacks a person’s reputation personally. Although there is a public interest in freedom of speech, the tort of defamation protects an individual’s private interest in his reputation.
FREQUENTLY ASKED QUESTIONS
Are there any defenses to defamation under the law of torts? Explain.
(2019-A)
In the domain of the law of torts, discuss defamation and its defenses.
(2019-A 5 years)
What are the pre-requisite of action in libel? When slander is actionable without proof of special damage?
(2018-A)
What is the function of defamation in tort law and what is the difference between libel and slander?
(2017-S)
How the defendant can defend himself in an action for defamation? Discuss in detail.
(2017-A)
What defendant cannot be liable for a defamatory statement published against the plaintiff? Explain those circumstances.
(2016-S)
